They say there are three speeches: the one you plan, the one you deliver, and the one you wish you had delivered.
Yesterday, on February 22, 2024, I took part in an X Space event organized by The Guild Presidents Leadership Academy-GPLA. This platform aims to use the connections of current and former Guild Presidents to bring about positive change nationally.
Joined by Hon. Gerald Karuhanga, Ms. Shamim Nambasa, and Mr. Christopher Okidi — all former Guild Presidents of Makerere University (the former two) and Gulu University (the latter) — our task was to shed light on the role of civic engagement in national development. We engaged in a rich discussion, the recording of which can be found on X (#GuildPresidentsSummit2024).
However, as the night progressed, further reflections emerged (the speech I wished I gave) that I feel compelled to share.
Civic engagement, in its essence, involves the actions taken by individuals and groups to improve the quality of life within a society. It encompasses a wide array of activities, from community service and voluntary work to advocacy campaigns addressing social issues, all rooted in fulfilling the responsibilities of citizenship.
So, how engaged are Ugandans in civic activities?
Ugandans exhibit a high degree of civic engagement, evident in their vocalization of various issues through media platforms, including social media (..and for the record, make no mistake, discussions on social media now find their way to the grassroot through traditional media like radios, and hot spot owners of smart phones in the villages). The youth, in particular, express themselves creatively on diverse topics, showcasing a willingness to negotiate civic matters, even in desperate statements like “tusaba Pulezidenti Museveni, Mama Nabbanja, Mama Ffina mutuyambe”.
In local communities, strong support networks emerge during times of both joy and sorrow, such as weddings and funerals. However, this engagement sometimes takes a negative turn, as seen in cases of mob justice, reflecting a communal response to addressing crime.
Furthermore, Ugandans demonstrate solidarity by offering assistance to those facing challenges, whether it’s contributing to medical bills or supporting educational needs highlighted in media reports. Politically, citizens relatively participate in elections and public health campaigns, while civil society organizations spearhead initiatives to assist vulnerable groups.
Despite these efforts, instances of less engagement or passivity among Ugandans are noticeable, particularly in cases of human rights abuses where silence prevails. Environmental negligence, corruption, and social injustices persist as individuals fail to hold perpetrators accountable or refuse to testify in legal proceedings.
There’s also a growing demand for the respect of citizens’ rights, yet little discussion on civic duties. The sense of collective responsibility appears to be waning, as evidenced by things – as little as people conniving in taxis to evade traffic or public officials selling social services akin to a supermarket model. Additionally, the removal of civic education from mainstream education has left a gap in educating young ones on their rights, duties, and government functioning.
This reality calls for introspection. Building a better society demands collective effort and personal accountability. We must all strive to be better citizens, refraining from again – small things like littering, but rather speaking out against injustice, and actively engaging in community service and civic education.
Ultimately, we owe it to each other to foster positive change within our country. This often means going beyond our individual obligations, extending a helping hand, and advocating for justice and equity in society. It is not possible to build a fort strong enough to shield you from social breakdown no matter how much power or money you accumulate. As a judicial officer and educator, I endeavor to exceed expectations by providing support beyond my official duties. I am encouraged by the many individuals who engage in acts of kindness and service, and I urge us all to continue this noble endeavor – extending it to much bigger challenges that have persisted like poverty, dropping out of school, poor infrastructure among others.
Today is Uganda’s 59th independence anniversary. So what? To people below 35 years, who incidentally form over three quarters of the population, this day may not carry so much meaning.
To those who were able to see, or have been able to pay attention and study the colonial brutality, plunder, and humiliation of being ruled over by foreigners – who treat you like savages, and care about nothing but extraction, it surely meant something to gain independence.
There are questions however. Is Uganda independent? It is very easy, with our polarized political grandstanding state of affairs to answer of course not, or of course yes! I want to invite you to the thinking that there is nothing in this world that is – of course!
The Uganda Argus carries some of the post independence sentiments as seen in the headlines
Uganda obviously has so many problems. In fact, Uganda is a question with hundreds of questions –to mention some; – the nationhood question, the Peasantry question, the land question, the Buganda question, the father of the nation question, the Museveni question, the Karamoja question, the national language question, the foreign capital question, the militarized politics question, the democracy question, the education question, the unemployment question, the infrastructure question, the neo-colonial question, the environment question, the corruption question, the transition question, the women question, the youth question, the faith question…I can go on and on…
So, 59 years later, there is no national cohesion, no national language (Forget English). Uganda is still among the poorest countries of the world with all that goes with that. She still struggles with basics and a militarized governance structure oiled by brutality (euphemism for violence) and patronage. Basic service delivery in education, health, infrastructure, economy among others is clearly still a joke! Actually, traditional institutions in all these sectors are shells of their former selves!
Uganda however, is also clearly not in the worst position. For starters, nature was very generous with her, in spite of the degeneration Ugandans have visited on her, mother nature is still every stable and habitable, the people of Uganda themselves are relatively good and hospitable, and a few things like a semblance of a stable State, and infrastructure has been set up. I’m walking on egg shells here because there are a thousand reasons to argue and believe we are nowhere, and nothing has been done but that would also be dishonest.
Now without too much skirting around, let me say we have come a long way, but we have a long long long long long way to get where we are supposed to be, and that is where I would like to focus my generation and those who are younger. Mandela was right; sometimes it dawns on a generation to be great, you can be that generation…
In the next 40 years, you the younger people should wake up, smell the coffee and work for the second independence, which in my view means the following in no particular order;
Place the economy in the hands of the nationals. Currently, the nationals do not own the bulk of primary industries; do not own the top most revenue contributors and sensitive sectors like banking and telecommunication are in the hands of foreign capital. I will not say more!
Work towards turning Uganda into an actual Nation. We may have a country but I am not sure we have a nation. For starters, “a nation is a historically, stable, community of people, formed on the basis of a common language, territory, economic life, ethnicity and/or psychological makeup manifested in a common culture” I do not know which of those elements is true for Uganda but as far as I’m concerned, I see none. Whereas we came to be by force, or mistake – being victims of Lugardist imperial maneuvers and machinations, following the Berlin conference. We now have no choice but come together as brethren and sistren, and intentionally build a community with a common culture (values and aspirations), a common language, and an economic life that makes sense, – and works for all. We already have a common territory, a consolidatable (if that word exists) semblance of stability, and should learn to harness our diverse ethnicity through devolution of power and resources among others.
Have a conversation and work towards reducing the wide gap between Uganda’s formal and informal institutions. Uganda’s population is very far detached from the formal institutions. People do not understand and relate with the governance system as stakeholders, but rather as subjects, people fear, and hardly understand or trust the laws or the judicial system, the education system does not speak to the needs, and aspirations of an average Ugandan among others. There is therefore need for a deliberate effort to make Ugandans, their conditions and culture meet the formal structures. This means either the formal institutions have to be broken and rebuilt on the basis of Uganda’s informal institutions or there has to be fast tracking in formalizing Ugandans to meet the copied and pasted formal institutions. I would advise that we employ the former with sprinkles of the latter. This is closely linked to number two, and in my view, could answer all the remaining challenges we have.
The military as a guarantor of peace and security must not be used as a tool to settle political questions, but have cogenial relations with all. In this photo, the writer as Guild President IUIU, led a team of student leaders to have an interaction with the leadership of Gaddafi baracks and military school in Jinja under the auspices of the patriotism Club
A few week ago, the Constitutional Court handed down a decision with a majority declaring the trial of civilians in the Court martial unconstitutional. Government has since appealed this decision in the Supreme Court, and secured a stay.
The judgment that is a few pages over 100 was widely distributed on social media, and one would hope that whoever was interested read it. Knowing how legalistic judgments can be, and our literacy challenges however, (hides face) coupled with the stress of the lockdown, it appears many did not have the opportunity to understand the reasoning of the Justices. As a human rights lawyer who was excited with the decision, I have therefore summarized what the majority decision was and its basis in simple less technical terms.
DECISION
The decision in short is that civilians cannot, and should not be tried in the Court martial. Further, that only soldiers are subject to the Court martial for service offences. As such criminal offences should be tried in civil Courts for all (including soldiers) as the Court martial does not have jurisdiction/power beyond service offences.
REASONING
The reasons the Justices advanced for holding as such were principally;
That the Constitutional provision under which the UPDF Act (that creates the Court martial) was enacted does not bring civilians under the authority of the Act/Court martial. The said Article 210 of the 1995 Constitution of the Republic of Uganda provides that;
“Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for—
(a) the organs and structures of the Uganda Peoples’ Defence Forces;
(b) recruitment, appointment, promotion, discipline and removal of
members of the Uganda Peoples’ Defence Forces and ensuring
that members of the Uganda Peoples’ Defence Forces are
recruited from every district of Uganda;
(c) terms and conditions of service of members of the Uganda Peoples’ Defence Forces; and
(d) the deployment of troops outside Uganda.”
This is the Article upon which parliament based to make the UPDF Act that creates the Court martial, and a thorough reading of that Article reveals that the framers did not foresee civilians being brought under the purview of such regulation.
What the Article reveals however (according to the Justices and I agree) is that the Court martial is a tribunal to regulate the conduct of soldiers for service offences. This is in the way among others; the law council regulates lawyers, and the Uganda Police professional standards unit regulates the conduct of police officers. Imagine the law Council subjecting a none Advocate to its jurisdiction or a Police Officer being tried for a criminal offence before the professional standards unit!
2. The second thread of reasoning was that the Court martial does not pass the tests of independence and capacity to offer a fair hearing (as contemplated by the Constitution) to those brought before it. The Justices raised the following premises to support that finding; a) The nature of appointment and administration of the Court, the nature of the oath taken by officers of the Court martial that is different from that of Judges where, whereas Judges swear to uphold the Constitution, military officers swear to bear allegiance to the commander in chief, the lack of security of tenure for the Judges in the Court martial that do not allow them to act independently among others.
The court martial in fact, the Justices ruled, is a part of the Executive, just as the prosecution is. Hearing criminal cases therefore means the Executive is a prosecutor and Judge in its own case which, in the wisdom of the Justices of the Constitutional Court does not pass the test of independence. Perhaps extracts from the horses’ mouths may summarize the decision better.
Kasule Ag. JCC
“The beginning of the preamble to the Constitution of Uganda is to the effect that; –
WE THE PEOPLE OF UGANDA:
RECALLING our history which has been characterized by political and constitutional instability;….”
It is a fact of Uganda’s history, both past and recent, that the political and constitutional instability that is the subject of “Recalling” hasbeen due to the army and those others, armed at the material time, overthrowing the Constitution and relying on military power to govern suppressing the civil authorities. While the positive role of the military in the country’s affairs of ensuring peace and safety in the country ought to be recognized, appreciated encouraged and protected, this role must always have its origin and be carried out in strict compliance with the Constitution. This must be so, so that every citizen of Uganda, whatever the status, or standing in the country, does not repeat the evil of the past history of this country whereby the army acted contrary to discipline, terrorized the citizenry by violating the people’s basic rights and freedoms.
The military must enforce military discipline to those serving under the military establishment and must do so in strict compliance with the Constitution. In all other situations of governance, the military must subject itself to the civil authorities and not subject civilians to the military judicial system that is not independent and impartial.”
Obura JCC
“The respective laws (for lawyers, police, accountants, architects, medical and dental practitioners) established these specialized disciplinary courts, tribunals, committees or councils restricted their functions to handling of disciplinary matters that are peculiar to their disciplines/professions. The membership of these specialized bodies are therefore drawn from members of the profession who know the rules of their trade. They need not be lawyers or Judges because they handle purely disciplinary and other matters that relate to their profession.
I am of the firm view that the Constituent Assembly which made the Constitution had in mind that kind of arrangement when they gave parliament the mandate to make laws regulating the discipline of the UPDF among other things. I do not think they intended that the disciplinary court established under the laws made by parliament would have such wide mandates as to hear all offences under the Penal Code Act and any other enactment in force.
By so saying, I am by no means undermining or downplaying the key role the military plays in our national security and the need for strict enforcement of discipline in its rank and file. I am very much aware of our history of undisciplined military men who terrorized the citizens of this nation and caused the death of many just as I am also aware of the gross abuse of excessive powers of military tribunals which was used to solve political issues through tramped up charges, mock trials, condemnation of the innocent and their public execution during the dark days of our history.
Both history left this country with scars that cannot be forgotten and so they must be guarded against. It is the duty of this Court to enforce provisions of the Constitution and ensure that the fundamental rights and freedoms enshrined therein are enhanced and protected. I am convinced that military can effectively handle matters to do with discipline of persons subject to military law and reserve other criminal offences under the Penal Code Act and other enactments for the civil Courts to handle without compromising our national security.”
Kakuru JCC
“Let me add if I may that, ordinarily members of the military in this country are tried by civilian Courts for non-service offences. In Uganda Vs Hussein & 12 others CC No. 0001 of 2010 non Ugandan terrorists were tried and convicted on a number of offences under the Anti-Terrorism Act but a civilian Court. Over 60 innocent people had been killed while watching world football cup finals peacefully in a playground. They were not tried by the Court martial.
…one would have to question why Uganda Vs Thomas Kweyoro H.CCC 10 of 2011 the proceedings were instituted in civilian Courts while the petitioner herein is before the Court martial. Kwoyoro is facing 93 criminal charges in respect of war crimes and crimes against humanity emanating from his role as a top LRA commander for over 20 years. I have not been able to find the rationale…If there is, such a reason is unjustified and unconstitutional.”
Yes, you read it from the Justices. With all honesty, I have always thought that the position stated by the Justices is a no brainer. That we have to debate it, go through appeals and this entire hullabaloo says a lot about our status and commitment to a democratic society.
For the full decision, send request to matandaah@gmail.com
Today, some of the suspects in the attack against Gen. Katumba Wamala appeared in Court. To the shock of the eyes and cameras around, the suspects were full of wounds, swellings, and other apparent marks of torture! This is unfortunate! This breaks all the laws there are, national and international, but especially go counter to the 1995 Constitution of the Republic of Uganda that states in Article 24 that;
“No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.”
That above is the first non-derogable right under Article 44 (a). Therefore that such images are unfortunate cannot be overemphasized and one hopes that security agencies sober up immediately and shun cruel methods of work. The more unfortunate bit however is that the script has remained the same over the years and even where Court/human rights commission redress comes against government and orders for recompense, victims of such rarely receive compensation.
Imagine suffering torture of the magnitude of suspects of the Kaweesa murder and that those of Gen. Katumba have suffered now, by luck going through the rigors of litigation to seek justice, you relive the horror through the exactitudes of trial successfully, and then you never receive the compensation awarded – until death, or another struggle of inordinate delay. This is the reality for many Ugandans ill-fated to be victims of torture.
The Uganda Human rights Commission reports a spike in torture cases every year especially by security agencies. No wonder, 70% of the Court/Commission awards for human rights violations are for torture.
Torture takes physical and psychological forms. Physical forms like beating with sticks or gun butts, kicking, using pepper spray or electric shocks, placing objects like sticks between fingers, placing victims in insects, plucking out fingernails, suffocating in polythene papers, splashing water in nostrils, suspending victims upside down among others. Then psychological forms include threats to shoot or actual shooting around the person, lengthy solitary confinement in filthy environments, denial of sleep for long hours, and detention incommunicado.
In some cases, torture leads to death and causes serious medical, psychiatric and psychological problems in others, entitling the victims to an effective remedy. This is why legally, compensation is widely acknowledged in national and international law as an avenue for prohibition and redress.
The 1995 Uganda Constitution creates a State obligation for remedies upon violation of human rights, one of which is compensation. It gives power to Courts, and the Uganda Human Rights Commission to award Compensation to victims of human rights violations including torture. Courts are also constitutionally enjoined in adjudicating cases of both a civil and criminal nature, to ensure—justice is not delayed; and adequate compensation is awarded to victims.
The Prevention and Prohibition of Torture Act, 2012 as well provides for Compensation for any economically assessable damage resulting from torture such as— physical or mental harm, including pain, suffering and emotional distress; lost opportunities, including employment, education and social benefits; material damage and loss of earnings, including loss of potential earnings; medicines, medical services.
Unfortunately, these provisions are largely inoperable because after the awards for compensation are made – usually through personal agency, and support from lawyers, and civil society organizations, the payments either never come through or take eons – sometimes until the victims die. This defeats justice, law and is an extra violation of people’s very humanity, and several human rights.
The laws fall short by not providing for any timelines, sanctions for delay, or guidance on the promptness of payment the incessant inordinate delays and non-payment.
There was a plausible attempt by legislators in 2019 to cure this through the Human Rights Enforcement Act, 2019 by providing that any order made under the Act shall be complied with, within six months from the date of determination, unless appealed against. This was an effort in line with international obligations of freedom from torture and effective remedy under the UDHR (UN 1948), the International Covenant on Civil and Political Rights (ICCPR), the UNCAT (1984), the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which all provide that victims of rights abuses are to be treated with humanity and that the laws in place as well as administrative procedures for justice and reparation, should aid the victim by easy accessibility and use without being re-traumatized.
All these national and international laws have however, hitherto been ignored in sheer contempt hence the prevalence of delay and non-payment. According to the US Department of State’s 2019 Country Reports on Human Rights Practices: (Uganda report), bureaucratic delays continue to hamper enforcement of judgments that grant financial compensation by both Court and the human rights commission as the government rarely complies with judicial decisions related to human rights.
The African Commission on Human & Peoples’ Rights in Banjul, the Gambia, like the Human Rights Watch (HRW), and earlier the UN Human Rights Committee all have noted the delay in the payment of compensation to victims of torture and recommended that the State establish a Victims Compensation Fund to ensure timely payment of the compensation to victims. To date however, this is neither implemented nor are there noticeable efforts to make it a reality.
This is not just for tortured suspects. Human Rights Focus, a human rights organization in Gulu, threatened to drag government to Court for the delayed compensation of victims of abuse. They say, more than 11 years since Court ordered government to pay 117 million shillings to six people who were raped, and tortured by officers of the Uganda People’s Defence Forces, the victims have not received the award.
The status quo forced victims of torture in Uganda, in an attempt to curb the challenge of accessing awarded claims to form themselves into an association, the Uganda torture survivors’ association, to support each other in following up but the problem remains pervasive.
The African Centre for Treatment and Rehabilitation of Torture Victims (ACTV) too, reports that many victims of torture whom they support to secure awards for compensation never get paid. These include the prominent example of 22 torture victims who were arrested and tortured as suspects for the murder of AIGP. Felix Kaweesa. They got awards of Ushs.50,000,000/= each that have never been paid up to date.
The inordinate delays in payment of awards by the human rights commission/Courts has been largely, blamed on there being no streamlined procedure for the victims to realize payment. Initially, when a file on a torture victim was received from the Court or Uganda Human Rights Commission, an internal payment procedure at the Ministry of Justice and Constitutional Affairs would commence. The Ministry had a Committee on compensation that would make a decision of payment, send a minute to the Ministry’s Accounts department for payment as and when funds are available. In this case, the Ministry received all awards of compensation against the state. The Ministry would budget for the required resources, and forward the same to the Ministry of Finance.
However, government decentralized the payment of court/tribunal awards and compensation to line ministries, departments and agencies (MDAs) effective 2015. Since the decision was operationalized, complainants have been facing even greater challenges in following up payments of Courts/Tribunal awards made against government, as the relevant MDAs keep claiming that they do not have the finances to make the payments not budgeted for.
This lack of enforcement continues to be a source of intense frustration and disillusionment experienced by torture survivors. The Government often argues that it has no money to pay the awards but this is widely seen as reflecting a lack of political will. It is only in cases doggedly pursued by complainants that the Attorney-General’s office has at times paid compensation. The state fails to assume ultimate responsibility by paying out the awards, effectively leaving torture survivors empty-handed.
The UHRC has from as far back as 2005 repeatedly stressed that the Government should establish a Victims Compensation Fund to compensate victims where perpetrators are unable to pay none of which has been heeded. It is clear therefore, that the main challenges to payment of compensation is lack of a clear processing and follow up system, corruption, non-prioritization of compensation for funding and the general social political attitude in the country.
There is thus an apparent need to cause structural changes through collective action, and advocacy to deal with the malaise of undue delay and non-payment of compensation awards. The biggest human rights violation in Uganda is torture. Unfortunately, there is scanty advocacy around the issue. As we fight to eliminate torture, the least government can do is to compensate the victims.
The writer is an Advocate of the High Court of Uganda, an Assistant law lecturer at the Islamic University in Uganda, Human Rights lawyer and a fellow of the East Africa Emerging Public Interest Advocates Program (EAEPIAP) by Centre for Strategic Litigation, Tanzania.
THE MATANDA SPACES 